1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

6

7 ORLANDO GARCIA, Case No. 21-cv-04926-PJH 8 Plaintiff,

9 v. ORDER GRANTING MOTION FOR DEFAULT JUDGMENT 10 JERRY BODDUM, et al., Re: Dkt. No. 17 11 Defendants. 12

13 14 Before the court is plaintiff’s motion for default judgment. Dkt. 17. The matter is 15 fully briefed and suitable for decision without oral argument. Accordingly, the hearing set 16 for January 27, 2022 is VACATED. Having read the papers and carefully considered 17 their arguments and the relevant legal authority, and good cause appearing, the court 18 hereby GRANTS for the following reasons. 19 I. BACKGROUND 20 Plaintiff filed this action on June 28, 2021, alleging violations of the Americans with 21 Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”). Dkt. 1 at 5– 22 7. Plaintiff is an individual with cerebral palsy who uses a wheelchair for mobility. Id. at 23 1. Plaintiff alleges that structural barriers denied him meaningful access to the real 24 property located at 4917 Telegraph Ave, Oakland, California (“Tattoo 13”), owned by 25 Jerry Boddum and Mary Ann Boddum (“defendants”). Id. at ¶¶ 11–14. Specifically, 26 plaintiff alleges defendants failed to provide wheelchair accessible paths to the property 27 and failed to provide accessible door hardware. Id. at ¶¶ 12, 15. 1 August 12, 2021. Dkt. 10–11. Defendants did not respond. Plaintiff moved for an entry 2 of default on October 20, 2021, which the clerk entered against each defendant on 3 October 22, 2021. Dkt. 13–16. Plaintiff moved for default judgment on December 16, 4 2021, and defendants were served the motion on the same day. Dkt. 17, 17-13. 5 II. DISCUSSION 6 A. Jurisdiction and Service of Process 7 1. Subject Matter Jurisdiction and Personal Jurisdiction 8 A court has a duty to examine both subject matter and personal jurisdiction when 9 default judgment is sought against a non-appearing party. In re Tuli,

, 712 10 (9th Cir. 1999). 11 The court has subject-matter jurisdiction over plaintiff’s ADA claim because it 12 arises under federal law, see

, and supplemental jurisdiction over 13 plaintiff’s Unruh Act claim because it shares a common nucleus of operative fact with the 14 ADA claim, see

(a). The court also has personal jurisdiction over 15 defendants because they own the California real property at issue in this action, Tattoo 16 13. Dkt. 17-7. And public records suggest defendants reside in California, thereby 17 subjecting them to general personal jurisdiction in this court.

18 2. Service of Process 19 A court must also assess whether the defendant against whom default judgment is 20 sought was properly served with notice of the action. See Penpower Tech. Ltd. v. S.P.C. 21 Tech.,

(N.D. Cal. 2008). Here, defendants were personally 22 served, and thus had notice. Dkt. 10, 11. 23 B. Default Judgment 24 After entry of default, a court may grant default judgment on the merits of the case. 25 Fed. R. Civ. P. 55. “The district court’s decision whether to enter a default judgment is a 26 discretionary one,” Aldabe v. Aldabe,

(9th Cir. 1980), guided by the 27 following factors: plaintiff's substantive claim[;] (3) the sufficiency of the 1 complaint[;] (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether 2 the default was due to excusable neglect[;] and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring 3 decisions on the merits. 4 Eitel v. McCool,

, 1471–72 (9th Cir. 1986). 5 Here, the Eitel factors weigh in favor of granting default judgment. 6 1. Possibility of Prejudice to Plaintiff 7 The first factor considers whether the plaintiff will suffer prejudice. Here, because 8 defendants did not respond to plaintiff’s complaint, plaintiff’s only recourse is a default 9 judgment. Thus, this factor weighs in favor of default judgment. 10 2. Merits of Plaintiff’s Claims & Sufficiency of Complaint 11 The second and third factors, “often analyzed together,” require the plaintiff “to 12 plead facts sufficient to establish and succeed upon its claims.” Dr. JKL Ltd. v. HPC IT 13 Educ. Ctr.,

(N.D. Cal. 2010). After entry of default, the 14 factual allegations in the complaint related to liability are accepted as true and deemed 15 admitted. Fair Hous. of Marin v. Combs,

(9th Cir. 2002). “The district 16 court is not required to make detailed findings of fact.”

17 Plaintiff seeks default judgment on his ADA and Unruh Act claims. To prevail on a 18 Title III discrimination claim, “the plaintiff must show that (1) she is disabled within the 19 meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a 20 place of public accommodation; and (3) the plaintiff was denied public accommodations 21 by the defendant because of her disability.” Molski v. M.J. Cable, Inc.,

, 730 22 (9th Cir. 2007). “California's Unruh Civil Rights Act operates virtually identically to the 23 ADA.”

. 24 Plaintiff has satisfied the elements of these claims. First, plaintiff has shown he is 25 disabled under the ADA. Under the ADA, a physical impairment that substantially affects 26 a major life activity, such as walking, qualifies as a disability.

(1)(A), 27 12102(2)(A). Plaintiff uses a wheelchair for mobility. Accordingly, plaintiff has a physical 1 defendants own a public accommodation. Defendants’ tattoo parlor is a service 2 establishment, which meets the definition of a “public accommodation.”

12181(7)(F). Third, plaintiff has shown that he was denied access to a public 4 accommodation due to his disability because Tattoo 13 failed to have a wheelchair path 5 or doors with accessible hardware. 6 Accordingly, plaintiff’s ADA and Unruh Act claims satisfy the second and third Eitel 7 factors. 8 3. Money at Stake 9 The fourth factor considers the amount of money at stake in relation to the 10 seriousness of the defendant’s conduct. Eitel, 782 F.2d at 1471–72. The sum of money 11 at stake is not substantial here. Plaintiff seeks to recover a total of $10,822.00 in awards 12 ($4,000.00 in statutory damages per defendant and $2,882.00 in attorneys’ fees and 13 costs). Thus, the sum of money at stake is appropriate and weighs in favor of granting 14 default judgment. 15 4. Possibility of a Dispute Concerning Material Facts 16 The fifth factor considers the possibility of a dispute of material fact.

But there 17 is no indication that the material facts are in dispute, and the well-pleaded allegations in 18 the complaint as to liability are deemed admitted. Geddes v. United Fin. Grp.,

557, 560 (9th Cir. 1977). Thus, this factor weighs in favor of default judgment. 20 5. Excusable Neglect 21 “This factor favors default judgment where the defendant has been properly 22 served or the plaintiff demonstrates that the defendant is aware of the lawsuit.” 23 Wecosign, Inc. v. IFG Holdings, Inc.,

(C.D. Cal. 2012). 24 Defendants were served with the summons and complaint on July 20, 2021 and August 25 12, 2021. Plaintiff notified defendants of the entry of default on October 20, 2021, and 26 defendants were served this motion on December 16, 2021. As such, defendants were 27 made aware of this suit, making this factor weigh in favor of default judgment. 1 “Cases should be decided upon their merits whenever reasonably possible.” Eitel, 2

. But defendants’ failure to respond to plaintiff “makes a decision on the 3 merits impractical, if not impossible.” PepsiCo, Inc. v. Cal. Sec. Cans,

(C.D. Cal. 2002). Accordingly, this factor weighs in favor of granting default 5 judgment. 6 * * * 7 In sum, all seven Eitel factors weigh in favor of granting default judgment. 8 III. CONCLUSION 9 For the foregoing reasons, IT IS ORDERED THAT: 10 1. Plaintiff’s motion for default judgment is GRANTED; and 11 2. Plaintiff is granted injunctive and monetary relief, as is detailed in the 12 corresponding judgment. 13 IT IS SO ORDERED. 14 Dated: January 21, 2022 15 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27